How can an executor, who is refusing to speak to the beneficiaries be removed for misconduct?
1 Answer from Attorneys
Assuming the estate is in NC, you can either file a file a motion to remove the executor alleging one of the grounds set forth in NC G.S. § 28A‑9‑1. or an executor can be summarily removed by the clerk as outlined in NC G.S. § 28A‑9‑2.
§ 28A‑9‑1. Revocation after hearing.
(a) Grounds. – Letters testamentary, letters of administration, or letters of collection may be revoked after hearing on any of the following grounds:
(1) The person to whom they were issued was originally disqualified under the provisions of G.S. 28A‑4‑2 or has become disqualified since the issuance of letters.
(2) The issuance of letters was obtained by false representation or mistake.
(3) The person to whom they were issued has violated a fiduciary duty through default or misconduct in the execution of his office, other than acts specified in G.S. 28A‑9‑2.
(4) The person to whom they were issued has a private interest, whether direct or indirect, that might tend to hinder or be adverse to a fair and proper administration. The relationship upon which the appointment was predicated shall not, in and of itself, constitute such an interest.
(b) Procedure. – When it appears to the clerk of superior court, on his own motion or upon verified complaint made to him by any person interested in the estate, that any of the grounds set forth in subsection (a) may exist with regard to any personal representative or collector within his jurisdiction, he shall issue citation requiring such personal representative or collector, within 10 days after service thereof, to show cause why his letters should not be revoked. On the return of such citation duly executed, the clerk of superior court shall set the date for a hearing. Notice of the time and date of the hearing shall be given to such persons and in such manner as the clerk of superior court shall determine. If at the hearing the clerk of superior court finds any one of the grounds set forth in subsection (a) to exist, he shall revoke the letters issued to such personal representative or collector.
§ 28A‑9‑2. Summary revocation.
(a) Grounds. – Letters testamentary, letters of administration, or letters of collection, shall be revoked by the clerk of superior court without hearing when:
(1) After letters of administration or collection have been issued, a will is subsequently admitted to probate.
(2) After letters testamentary have been issued:
a. The will is set aside, or
b. A subsequent testamentary paper revoking the appointment of the executor is admitted to probate.
(3) Any personal representative or collector required to give a new bond or furnish additional security pursuant to G.S. 28A‑8‑3 fails to do so within the time ordered.
(4) A nonresident personal representative refuses or fails to obey any citation, notice, or process served on him or his process agent.
(5) A trustee in bankruptcy, liquidating agent, or receiver has been appointed for any personal representative or collector, or any personal representative or collector has executed an assignment for the benefit of creditors.
(6) A personal representative has failed to file an inventory or an annual account with the clerk of superior court, as required by Article 20 and Article 21 of this Chapter, and proceedings to compel such filing pursuant to G.S. 28A‑20‑2 or 28A‑21‑4 cannot be had because service cannot be completed because the personal representative cannot be found.
(b) Procedure. – Upon the occurrence of any of the acts set forth in subsection (a), the clerk of superior court shall enter an order revoking the letters issued to such personal representative or collector and shall cause a copy of the order to be served on him or his process agent.
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